93 Decision Citation: BVA 93-03787
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-15 554 ) DATE
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THE ISSUE
Entitlement to an increased rating for internal derangement
of the right knee with traumatic arthritis, currently rated
30 percent disabling.
REPRESENTATION
Appellant represented by: Department of Veterans' Affairs,
Tennessee
ATTORNEY FOR THE BOARD
Anna Bryant, Associate Counsel
INTRODUCTION
The veteran had active military service from March 1951 to
April 1954.
This matter came before the Board of Veterans' Appeals
(hereinafter Board) on appeal from a May 1992 rating
decision of the Nashville, Tennessee Regional Office
(hereinafter RO) of the Department of Veterans Affairs
(hereinafter VA), which denied the veteran's claim seeking
entitlement to an increased evaluation for his
service-connected right knee disability. The notice of
disagreement with that action was received in July 1992. A
statement of the case was issued to the veteran and his
representative in August 1992, and the veteran's substantive
appeal was received later that same month. The case was
received at the Board in late August 1992. The veteran has
been represented throughout his appeal by the Tennessee
Department of Veterans' Affairs.
Initially, the veteran had requested a personal hearing in
connection with this appeal before a Section of the Board
sitting in Washington, D.C.; however, in a statement
received at the Board on January 11, 1993, this request was
withdrawn by the veteran.
The veteran has also raised the issues of entitlement to
service connection for arthritis and a respiratory disorder,
which have not been developed for appellate review, are not
inextricably intertwined with the issue on appeal, and,
accordingly, are referred to the RO for appropriate action.
REMAND
The veteran asserts that the RO committed error in denying
his claim seeking an increased evaluation for his
service-connected right knee disability. He maintains that
he wears a knee brace because of severe instability and that
he is unable to ambulate without a walker or cane. In this
regard, he points out that he has not been afforded a VA
examination in order to determine the current degree and
severity of his right knee disability.
We recognize the fact that the VA has a duty to assist the
veteran in the development of facts pertinent to his claim.
38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a)
(1992). The Court of Veterans Appeals has held that the
duty to assist the veteran in obtaining and developing facts
available to support his claim includes obtaining adequate
VA examinations. Little v. Derwinski, 1 Vet.App. 90
(1990). This duty includes additional VA examination by a
specialist when needed. Hyder v. Derwinski, 1 Vet.App. 221
(1991).
Under the circumstances of this case we are of the opinion
that additional assistance is required. Accordingly, the
case is REMANDED to the RO for the following actions:
1. The veteran, through his
representative, should be requested to
identify all sources of medical
treatment, especially for his right knee
disorder, he has received since April
1992 and to furnish signed authorizations
for release to the VA of private medical
records in connection with each non-VA
source he identifies, including any
photos of his arthritic joints that he
may have in his possession. All records
obtained should be added to the claims
folder.
2. The veteran should be afforded a
special orthopedic examination for the
purpose of determining the current degree
and severity of his service-connected
right knee disability. The examination
should be performed and reported in
accordance with the Physician's Guide for
Disability Evaluation Examinations. All
indicated tests and studies should be
undertaken, including X-rays. The claims
folder should be made available to the
examiner prior to the examination.
After the above development has been completed, the case
should again be reviewed by the RO, including evidence
submitted directly to the Board in November 1992, as RO
review has not been waived by the veteran. If the veteran
remains dissatisfied with the action taken, both he and his
representative should be furnished a supplemental statement
of the case and be given an opportunity to respond thereto.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order,
following appropriate appellate procedure.
The purpose of this REMAND is to further develop the record
and the Board does not intimate any opinion, either factual
or legal, as to the ultimate disposition warranted in this
case. No action is required of the veteran until he
receives further notice.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
J. J. SCHULE
C. J. STUREK
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (1992).